The
Defendant, Zachary Michael Johnson, was indicted for five
counts of rape by force or coercion, a Class B felony, all
involving the same victim and occurring over a short period
of time. The jury convicted him of the lesser offense of
sexual battery, a Class E felony, in two counts of the
indictment and acquitted him of the remaining three counts of
the indictment. The trial court subsequently sentenced him as
Range I, standard offender to concurrent terms of two years
for each conviction, suspended to three years of supervised
probation. On appeal, the Defendant challenges the
sufficiency of the convicting evidence and argues that the
trial court committed plain error by not instructing the jury
on the lesser-included offense of assault by extremely
offensive or provocative physical contact. Following our
review, we conclude that the evidence is sufficient to
sustain the convictions but that the trial court erred in not
instructing the jury as to the lesser-included offense.
Accordingly, we reverse the judgments of conviction and
remand for a new trial.

Tenn.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Reversed and Remanded for a New Trial

Herbert H. Slatery III, Attorney General and Reporter; John
H. Bledsoe, Deputy Attorney General; Glenn R. Funk, District
Attorney General; and Megan M. King and Leandra J. Varney,
Assistant District Attorneys General, for the appellee, State
of Tennessee.

Alan
E. Glenn, J., delivered the opinion of the court, in which
Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.

OPINION

ALAN
E. GLENN, JUDGE

FACTS

This
case stems from sexual activity that occurred between the
Defendant and the victim, S. K., [1] who had met online, on the
evening of May 27-28, 2014, during their first and only
in-person date. After drinking together at a bar, the
Defendant and the victim went to the Defendant's
condominium, where they drank more alcohol together before
engaging in sexual contact that began with consensual kissing
but escalated, according to the victim, into non-consensual
acts involving the Defendant's forceful and violent
digital and penile penetration of the victim's vagina and
digital penetration of the victim's anus. The victim
reported the Defendant's actions to the police that same
night/early morning after she arrived home, and the Davidson
County Grand Jury subsequently indicted him for five counts
of rape involving force or coercion, with count one based on
the Defendant's first instance of digital penetration of
the victim's vagina, count two based on his first
instance of digital penetration of the victim's anus,
count three based on his penile penetration of the
victim's vagina, count four based on his second instance
of digital penetration of the victim's vagina, and count
five based on his second instance of digital penetration of
the victim's anus.

At the
Defendant's trial, the victim testified that she met the
Defendant through the online dating site, "Tinder,
" approximately a week to a week and a half before their
May 27, 2014 in-person date. They first exchanged Facebook
messages through the dating site, but after she became
comfortable with him, she gave him her cell phone number, and
they began texting and talking. She recalled that they had at
least one long phone conversation before May 27, during which
the Defendant tried to convince her to visit in his home. The
victim testified that she refused because she could tell that
he was intoxicated.

The
victim estimated that she and the Defendant exchanged
approximately twenty text messages before they met in person.
She was "almost positive" that none of their
conversations were "sexual in nature." She
acknowledged, however, that she sent him a topless photograph
of herself as well as a video in which she was masturbating
while topless. The Defendant also sent her a video, shot from
the waist down, of himself masturbating. When asked why she
had sent a topless video of herself to the Defendant if she
did not intend to have sex with him, the victim explained
that her long, unhappy marriage had just ended, and she was
feeling "liberated" and "good about
[herself]":

That's a hard question to answer, but I know that I had
just gotten out of a really long like unhappy loveless
marriage. And I think that the way that the technology of
that like has changed so much, so I wasn't used to being
able to do something like that. And I felt a little liberated
in some weird way of being able to do that, and I felt good
about myself. There was no pressure from his part to do it. I
did it of my own accord. And I know that it alludes to sex,
but that was not my intention. It was mainly just almost like
for me.

The
victim testified that she and the Defendant arranged to meet
on the night of May 27, 2014, after she completed her work
shift at the Green Hills Mall. Their plan was to go out for
drinks; she had no intention of going to his home, much less
having sex with him. The victim said that she did not shave
her legs or otherwise "groom" herself as she would
have if she had any intention of being intimate with anyone.

The
victim testified that the Defendant, who was obviously drunk,
showed up at her workplace twenty to thirty minutes before
the 9:00 p.m. closing time. She sent him outside at 9:00 p.m.
to wait for her while the store completed its closing
process, and she joined him there at 9:15 or 9:20 p.m. The
Defendant had not brought his car, which annoyed her because
she did not want to be responsible for taking him home. The
victim explained that, while she was bothered that the
Defendant showed up drunk and did not bring his car, she had
been looking forward to going out after work and therefore
ignored her concerns.

The
victim testified that she and the Defendant walked to a bar
across the street from the mall, where the Defendant had a
beer and she had a beer and a shot of whiskey as they engaged
in small talk in the upper level portion of the bar. After
approximately thirty to forty-five minutes, the Defendant,
who had been "acting weird towards the bartender, "
rudely threw a credit card at the bartender to pay their
bill. They then went downstairs, where the victim wanted to
get another drink from the downstairs bar. However, the
bartender with whom the Defendant had had the upstairs
altercation pointed the Defendant out to the manager, and the
manager asked them to leave.

The
victim recalled that, as they were walking toward her car,
she was very upset with the Defendant and questioned why he
had been so rude to the bartender, telling him that she
frequently went to that bar after work. According to the
victim, the Defendant "was kind of laughing it off in a
very cocky way." She said the Defendant kept trying to
convince her to go to his apartment, but she kept resisting
because what she really wanted to do was to "go out
somewhere else . . . to let loose and have some fun."

The
victim testified that the Defendant was very persuasive, and
she finally relented and agreed to go with him to his
Hillsboro Road condominium, where the Defendant said he had
something for them to drink. She described herself as a
"people pleaser, " a "trusting" person,
and "a free flowing kind of hippy old soul." She
said that she ultimately agreed to accompany the Defendant to
his home to avoid conflict and to stop the Defendant's
irritating repeated pleas for her to "come over, come
over, come over." She stated that her intention was just
to "go up there and to hang out."

When
they arrived at the Defendant's condominium complex, the
Defendant again caused her concern by instructing her to park
in one of the parking spots outside the condominium gates.
She recalled that she questioned why and that the Defendant
told her that the walk to his apartment would be closer if
she parked where he directed. The victim said she felt an
"instinct" that something was not right, so she
pulled out of the area and drove away for a short distance.
However, the Defendant again began pleading for her to come
up for a drink, so she again relented, returned, and parked
where he indicated.

The
victim testified that she began to relax after she had been
in the Defendant's condominium for a few minutes. She
recalled seeing empty, airplane-size "Fireball whiskey
bottles" and a collection of antique cameras. She said
the Defendant gave her a Fireball whiskey, which she sipped,
and the Defendant had one as well. She remarked on how nice
his condominium was, and they resumed an earlier conversation
about the Defendant's interest in photography. At one
point, the Defendant made a strange reference about buying
bullets and indicated a box of bullets on the shelf. When she
asked him why he bought bullets, he gave her a "solemn
look, " as if he were sad and intended to hurt himself.
The victim stated that she felt bad for the Defendant, and it
was at that point that they began kissing.

The
victim testified that they were sitting together on the
Defendant's couch when they began kissing. The kissing
was "not aggressive, " and she was "okay"
with it. The Defendant then picked her up, carried her to his
bedroom, and laid her gently on his bed. The victim recalled
that she had her legs wrapped around the Defendant and that
she and the Defendant were still kissing as he carried her.
She and the Defendant continued to kiss after he laid her on
his bed. Both were still fully dressed, with the victim in a
dress, tights, and possibly a cardigan. According to the
victim, up to this point everything that had taken place was
consensual.

The
victim testified that the Defendant then "started to put
his hand over [her] tights on top of [her] vagina." She
told him, "[N]o, I don't want -- no, stop" in a
casual way, because she was not "panicked or
anything" at that point. The Defendant, however,
"kept on going towards [her] vagina over [her]
tights." She again said "no, " in a sterner
voice, but the Defendant did not stop. The victim stated
that, although she could not now recall this detail, she
reported to the police immediately afterwards that the
Defendant said to her at this point, "Oh, we're
going to f*** tonight."

The
victim testified that it was then that she became
"really panicked." She recalled that she crossed
her legs in an attempt to keep the Defendant's hand away.
The Defendant, however, "went underneath [her]
tights" and "stuck his finger up [her]
vagina." She felt a "really bad pain around [her]
wrist" because the Defendant was holding it so tightly.
She also felt pain "down . . . in [her] vagina, "
followed by a "weird pain" in her anus. The victim
stated that she repeated "no" at least ten times,
with her voice becoming progressively louder and moving into
a scream. She also physically fought to get away from the
Defendant, who was trying to remove her tights. The victim
recalled that she fell to the floor on the other side of the
bed and that her tights were off when she landed on the
floor. She could not, however, remember exactly when the
Defendant succeeded in removing them because she was in
"such a panic, and . . . in shock" at what was
happening. She did recall that when the Defendant saw after
removing her tights that she had not shaved, he said,
"[O]h, you're a dirty girl."

The
victim testified that the Defendant at some point had both of
her wrists pinned because she later saw bruises in the shape
of fingerprints on both wrists. She stated that the Defendant
inserted what felt like three or four fingers into her
vagina, to a depth of at least three or four inches. She was
unsure if he inserted just one, or more than one, finger into
her anus because she had never experienced that before and,
therefore, had nothing with which to compare the feeling.
Both penetrations hurt, and neither was consensual.

The
victim testified that after she fell off the bed, the
Defendant walked out of the room. She said she got up from
the floor and, in a state of shock, picked up her tights and
put them back on. As she was doing so, she heard a rustle of
keys from the other room where she had placed her cell phone,
wallet, and car keys. When she went into that room, she saw
that her cell phone was gone. She repeatedly asked the
Defendant where it was, and he continually said that he did
not know and that she was crazy. The victim stated that she
was panicked because she did know how to get back to her car
and felt trapped without her cell phone for communication.
She said she looked in several of the Defendant's drawers
for her phone, all while pleading with the Defendant to
return it.

The
victim testified that she finally offered to give the
Defendant oral sex in exchange for the return of her phone.
She explained that she was feeling "desperate and scared
and almost panicked and lost, " did not know what else
to do, and feared that the Defendant would "hurt [her]
further" if she did not perform oral sex "because
he seemed like that's what he wanted." She said when
she asked the ...

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